EXHIBIT 10.1
AGREEMENT
This Agreement (this "Agreement") is made and entered into as of August 9,
2004 by and between (i) Starwood Nevada Holding LLC, a Delaware limited
liability company formerly known as SH/SH Acquisition I, LLC ("Starwood"), (ii)
Sheraton Operating Corporation, a Delaware corporation ("Sheraton"), (iii)
BH/RE, L.L.C., a Nevada limited liability company ("BH/RE"), (iv) EquityCo,
L.L.C., a Nevada limited liability company ("EquityCo"), and (v) OpBiz, L.L.C.,
a Nevada limited liability company ("OpBiz"). As set forth below, this Agreement
also is executed by Starwood Hotels & Resorts Worldwide, Inc., a Maryland
corporation, for the purposes set forth below.
RECITALS
A. Starwood and BH/RE are parties to that certain Amended and Restated
Operating Agreement of EquityCo L.L.C. dated as of April 22, 2003 (the "EquityCo
Agreement").
B. Sheraton and OpBiz are parties to that certain Management Contract
dated as of April 23, 2003 relating to a certain real property located at 0000
Xxx Xxxxx Xxxxxxxxx Xxxxx, Xxx Xxxxx, Xxxxxx (the "Hotel Management Contract").
C. Starwood, Sheraton, BH/RE, EquityCo and OpBiz (the "Parties") desire to
enter into this Agreement to set forth certain agreements among them, which
agreements will supersede and amend any conflicting provisions in the EquityCo
Agreement, the Hotel Management Contract and any other agreements among any of
them or to which any of them is a party.
NOW THEREFORE, for the mutual agreements contained herein, and for other
good and valuable consideration the receipt and sufficiency of which are hereby
acknowledged, the Parties hereby agree as follows:
1. Defined Terms. Capitalized terms used but not defined in this Agreement
shall have the meanings ascribed to them in the EquityCo Agreement.
2. Funding of EquityCo. Starwood and BH/RE agree that Section 4.01 of the
EquityCo Agreement is hereby deleted in its entirety and replaced with the
following:
4.01 INITIAL CAPITAL CONTRIBUTIONS. Contemporaneously with the execution by
OpBiz of the Purchase Agreement, BH/RE made a cash contribution to the capital
of the Company in the amount of $5 million. The Company used such cash to make a
$5 million capital contribution to MezzCo and caused MezzCo to make a $5 million
capital contribution to OpBiz so that OpBiz could make the Initial Xxxxxxx Money
Deposit under the Purchase Agreement. At such time as the Second Xxxxxxx Money
Deposit ($5 million) was required under the Purchase Agreement, Starwood made a
cash contribution to the capital of the Company in an amount ($1.5 million)
equal to 15% of the sum of the Initial Xxxxxxx Money Deposit and the Second
Xxxxxxx Money Deposit and BH/RE made a cash contribution to the capital of the
Company in an amount ($3.5
million) equal to the difference between the amount of the Second Xxxxxxx Money
Deposit and the amount of the Starwood Contribution, which funds were
contributed by the Company to the capital of MezzCo, and immediately following
the Company caused MezzCo to contribute such funds to the capital of OpBiz to
fund the Second Xxxxxxx Money Deposit. Upon satisfaction (or waiver by Starwood
and BH/RE) of the following two conditions, (a) BH/RE, without offset, shall
make a cash contribution to the capital of the Company in the amount of (1) $70
million, less (2) $8.5 million (the amount of prior capital contributions made
by BH/RE pursuant to this Section 4.01), less (3) the lesser of (A) the net
amount of financing obtained by MezzCo as contemplated by Section 2.05(a)(i) or
(B) $50 million (collectively, the "BH/RE Initial Capital Contribution") by
directing the Escrow Agent, as set forth below, to wire to a Company account
designated by the Board of Managers any portion of the BH/RE Initial Capital
Contribution not already made by BH/RE (provided, however, that if the Escrow
Agent does not have funds from BH/RE therefor, BH/RE shall itself make the cash
contribution to the Company) and (b) Starwood, without offset, shall make a cash
contribution to the capital of the Company in the amount of (1) $20 million,
less (2) $1.5 million (the amount of the prior capital contribution made by
Starwood) and less (3) any portion of the Extension Xxxxxxx Money Deposit (as
defined in the Purchase Agreement) funded by Starwood as contemplated by Section
7.05 (collectively, the "Starwood Initial Capital Contribution"), by directing
the Escrow Agent, as set forth below, to wire transfer the Starwood Initial
Capital Contribution to a Company account designated by the Board of Managers
(provided, however, that if the Escrow Agent does not have funds from Starwood
therefor, Starwood shall itself make the cash contribution to the Company):
(i) the contemporaneous acquisition by OpBiz of the Property; and
(ii) receipt of gaming licenses and approvals of Governmental
Authorities, or alternative arrangements thereto, necessary for
OpBiz to acquire the Property and operate the business conducted at
the Property, taken as a whole, materially consistent with past
practices.
Each Member shall use reasonable efforts to cause such conditions to be
satisfied as promptly as is practicable. Starwood shall use reasonable efforts
to transfer, prior to August 11, 2004, the Starwood Initial Capital Contribution
(other than the $1.5 million already funded by Starwood in connection with the
Initial Xxxxxxx Money Deposit and the Second Xxxxxxx Money Deposit and other
than any portion of the Extension Xxxxxxx Money Deposit funded by Starwood as
contemplated by Section 7.05) into a sole order escrow account controlled solely
by Starwood and held by Escrow Agent (as defined in the Purchase Agreement) to
be held by the Escrow Agent until the Closing Date or the termination of the
Purchase Agreement, as the case may be, or the earlier instruction to the Escrow
Agent by Starwood to deliver the funds to the Company. BH/RE shall use
reasonable efforts to transfer, prior to August 11, 2004, the BH/RE Initial
Capital Contribution (less the $8.5 million already funded by BH/RE in
connection with the Initial Xxxxxxx Money Deposit and the Second Xxxxxxx Money
Deposit and any other part of the BH/RE Initial Capital Contribution theretofore
funded by BH/RE to the Company) into a sole order escrow account controlled
solely by BH/RE and held by the Escrow Agent to be held by the Escrow Agent
until the Closing Date or the termination of the Purchase Agreement, as the case
may be, or the earlier instruction to the Escrow Agent by BH/RE to deliver the
funds to the Company.
2
The parties intend for such Initial Capital Contributions to be used by
the Company to (A) capitalize the Subsidiaries, (B) fund the Subsidiaries to pay
costs related to the Renovation and other amounts permitted by the Credit
Agreement, (C) pay, or provide funds to the Subsidiaries to pay, expenses of the
types described in Section 7.05(a) in accordance with the terms thereof, and (D)
use any remaining amounts to pay obligations under the Credit Agreement.
It is recognized that any Member may choose to fund to the Company all or
part of its Initial Capital Contribution earlier than otherwise required hereby.
It is agreed that if either BH/RE or Starwood funds to the Company all or a
portion of their respective Initial Capital Contributions (other than the
contributions made to fund the Initial Xxxxxxx Money Deposit and the Second
Xxxxxxx Money Deposit and the Extension Xxxxxxx Money Deposit) and the Purchase
Agreement is terminated, then immediately upon such termination (and in priority
to any other payment required by this Agreement and notwithstanding anything in
this Agreement (including Article VI and Section 7.05) to the contrary), the
Company shall immediately refund to BH/RE and Starwood an amount equal to their
respective Initial Capital Contributions (other than the contributions made to
fund the Initial Xxxxxxx Money Deposit and the Second Xxxxxxx Money Deposit and
the Extension Xxxxxxx Money Deposit).
3. Tax Matters. Starwood and BH/RE agree that the first sentence of
Section 6.07 of the EquityCo Agreement is hereby deleted in its entirety and
replaced with the following:
6.07 TAX MATTERS. The Members intend for (i) the Company to be treated as a
partnership for federal income tax purposes, (ii) MezzCo to be treated as a
corporation for U.S. federal income tax purposes and (iii) OpBiz to be treated,
as determined by the tax matters partner, as a corporation, partnership or an
entity that is to be disregarded as separate from its owners for U.S. federal
income tax purposes.
4. Fees and Expenses. Starwood and BH/RE agree that Section 7.05(a) of the
EquityCo Agreement is hereby deleted in its entirety and replaced with the
following:
7.05 EXPENSES. (a) Except as otherwise provided in this Agreement or in any of
the agreements described in and approved in accordance with the terms of this
Agreement and except for any costs to be borne by any third party under any
agreement with the Company or its subsidiaries, the Company shall be responsible
for paying, and shall pay, all Fees and Expenses. "Fees and Expenses" shall mean
all costs and expenses (i) related to the business of the Company or its
subsidiaries or the transactions contemplated by the Purchase Agreement, Credit
Agreement or any other financing by the Company or its subsidiaries and paid,
owed or owing to an unaffiliated third party with respect to a Member (or
Affiliate), including, without limitation, costs, fees, expenses and amounts (1)
of the type described in Section 2.09(b) of the Purchase Agreement, (2) of
attorneys, financial advisors, and accountants relating to the financing,
business and operations of the Company (including, without limitation, the
formation of OpBiz, the Company, EquityCo, Starwood and BH/RE) and its
subsidiaries, (3) relating to obtaining and maintaining gaming licenses for and
of the Company and its subsidiaries and their Affiliates and controlling persons
and compliance with Nevada gaming laws and liquor licensing laws, (4) relating
to the registration of BH/RE's voting membership interests under the Securities
3
Exchange Act of 1934, (5) relating to the planned renovation of the Property
into the "Planet Hollywood Hotel & Casino," or the operation of, or the
preparation for assuming responsibility for the operation of, the Property
(including but not limited to salary and other payments to Xxxxxxx X. Xxxxx or
other employees of OpBiz and marketing, promotional and renovation planning
costs) and (6) paid by BH/RE to fund any Extension Xxxxxxx Money Deposit (as
defined in the Purchase Agreement) as described below or (ii) with respect to
costs and expenses incurred by a Member (or Affiliate) and paid, owed or owing
to an unaffiliated third party, as otherwise approved by the Board of Managers
(which approval, notwithstanding anything in this Agreement to the contrary
(including Sections 7.02(g)(vi) and 7.06), may be given by a majority of the
members of the Board of Managers, but, in which case, the categories of expenses
so approved shall apply to all of the Members). BH/RE shall advance to OpBiz (or
to the escrow account into which OpBiz is to deposit the Extension Xxxxxxx Money
Deposit) 85% of the amount of each Extension Xxxxxxx Money Deposit, so that
OpBiz can make payment of such Extension Xxxxxxx Money Deposit. (Starwood shall
fund, or shall cause to be funded out of its sole order escrow account
contemplated by Section 4.01, the other 15% of the amount of each Extension
Xxxxxxx Money Deposit so that each Extension Xxxxxxx Money Deposit may be timely
made, but those funds shall not be considered Fees and Expenses but, instead,
shall be part of the Starwood Initial Capital Contribution as contemplated in
Section 4.01.) If any of the Fees and Expenses described in this Section 7.05(a)
are or have been paid by any Member (or its sponsors), such Member shall be
entitled to be reimbursed by the Company for such payment provided such Member
has made its Initial Capital Contribution and the reimbursement of such Fees and
Expenses has been approved by the Board of Managers (which approval,
notwithstanding anything in this Agreement to the contrary (including Sections
7.02(g)(vi) and 7.06), may be given by a majority of the members of the Board of
Managers). If the Company does not have sufficient funds to reimburse all of the
reimbursable Fees and Expenses incurred by all of the Members as of Closing Date
(after making such capital contributions to MezzCo as may be (i) contemplated
under any financing agreement entered into by MezzCo or (ii) required to provide
MezzCo with sufficient funds to make any capital contribution to OpBiz that may
be contemplated by the Credit Agreement), then (1) Starwood shall bear 15% and
BH/RE shall bear 85% of the shortfall, and (2) promptly following the Closing
Date, Starwood and BH/RE shall contribute to the capital of the Company 15% and
85%, respectively, of the amount of such reimbursement shortfall.
5. Board of Managers. Starwood and BH/RE agree that Section 7.01(a) of the
EquityCo Agreement is hereby deleted in its entirety and replaced with the
following:
7.01 (a) BOARD OF MANAGERS. Except as otherwise expressly provided in this
Agreement, the business and affairs of the Company shall be vested in and
controlled by managers acting exclusively by means of and through a committee of
persons appointed in writing pursuant to Section 7.02 (the "Board of Managers").
Each person appointed by a Member to the Board of Managers shall act at the
exclusive direction of, be the agent for and shall be free to represent the
views and positions of such appointing Member; provided, however, each member of
the Board of Managers shall be required to act in accordance with the Standard
of Care. The Board of Managers, as agents acting for and at the direction of the
Members, shall have responsibility for establishing the policies and operating
procedures with respect to the business and affairs of the Company and for
making all decisions as to all matters which the Company has authority to
perform, as fully as if all the Members were themselves making such decisions in
lieu thereof.
4
All decisions made with respect to the management and control of the Company and
approved by the Board of Managers (except for such decisions which by the
express terms of this Agreement require the approval of all the Members) shall
be binding on the Company and all Members. The Board of Managers may, unless
otherwise determined by the Board of Managers, delegate certain administrative
functions to the officers, agents or representatives of the Company. No Member
has the authority to bind the Company.
6. Unanimous Decisions. Starwood and BH/RE agree that following language
is hereby added at the end of Section 7.02(g) of the EquityCo Agreement:
With respect to any matter that is both (i) requiring a Unanimous Decision or
otherwise requiring the approval of Starwood or the Starwood Designee, and (ii)
put to a vote by one or more members of the Board of Managers appointed by BH/RE
(the "BH/RE Designees"), such BH/RE Designees shall provide the member or
members of the Board of Managers appointed by Starwood (the "Starwood Designee")
a written notice specifying the action to be taken and a brief narrative
statement supporting the recommended action as being in the best interest of
EquityCo. For matters with respect to which the Starwood Designee has received
the written notice described above, Starwood agrees that it will not, and it
will cause the Starwood Designee to not, exercise its approval rights to delay
or prevent the authorization or approval (or fail to take an action necessary or
appropriate to permit the immediate approval), unless Starwood reasonably
determines that such matter is not in the best interest of EquityCo (in which
case Starwood and the Starwood Designee shall promptly deliver to the BH/RE
Designees a written notice specifying why they believe such matter is not in the
best interest of EquityCo). If after receipt and review of the notice from the
Starwood Designee, the BH/RE Designees still desire to take such course of
action, the dispute resolution process described in Section 13.21 hereof (the
"Rapid Resolution Process") shall be used to determine whether Starwood or the
Starwood Designee properly exercised the approval rights in accordance with the
reasonableness standard set forth herein. If Starwood does not deliver such
notice to the BH/RE Designees within ten (10) business days after the initial
written notice provided by the BH/RE Designees (which notice shall be delivered
in the same manner as contemplated for notices to Starwood under Section 13.03
or by email) is given to the Starwood Designee, then the Starwood Designee shall
be deemed to have approved the action in the initial notice provided by the
BH/RE Designees.
Starwood and BH/RE agree that the right to approve the amount, terms and
structure of any current or future financing of OpBiz, MezzCo or EquityCo
(mezzanine, senior or otherwise) and obtaining waivers or consents under, or
amendments or changes to, the Credit Agreement or other financing documents
shall not constitute a Unanimous Decision and no such financings, waivers,
consents, amendments or changes will constitute a failure of a condition to
Starwood's obligation to make the Starwood Initial Capital Contribution. It
shall be a proper purpose and consistent with the Standard of Care to approve
such financings and obtain such waivers, consents, amendments or changes to
obtain funds to pay Fees and Expenses.
7. Distributions of Net Cash Flow. Starwood and BH/RE agree that Section
6.03 of the EquityCo Agreement is hereby deleted in its entirety and replaced
with the following:
6.03. DISTRIBUTIONS OF NET CASH FLOW. Except as otherwise provided in the last
paragraph of Section 4.01 or in Sections 6.04 and 6.05 below, the Company shall,
to the extent and at times
5
determined by the Board of Managers (but subject to clause (ii) of Section
4.02(b)), make distributions of Net Cash Flow (to the extent and if available)
to the Members in the following manner:
(a) First, to Starwood until the sooner of (i) its Contribution
Account being reduced to zero or (ii) Starwood having received
distributions equal to $20 million and then second to BH/RE until the
sooner of (i) its Contribution Account being reduced to zero or (ii) BH/RE
having received distributions equal to $20 million and then third to the
Members in proportion to their respective Contribution Accounts until
their Contribution Accounts have been reduced to zero.
(b) Fourth to BH/RE until BH/RE has received aggregate distributions
pursuant to this Section 6.03(b) and Section 6.03(a) in an amount equal to
its Percentage Interest multiplied by the aggregate distributions
theretofore made under Section 6.03(a) and this Section 6.03(b).
(c) Fifth, to the Members in accordance with and in proportion to
their respective Percentage Interests.
8. Registration Rights Agreement. Starwood and BH/RE agree that new
Section 9.12 is hereby added to the EquityCo Agreement as follows:
9.12. REGISTRATION RIGHTS AGREEMENT. The Company will grant both Starwood and
BH/RE customary piggyback registration rights, which registration rights shall
(i) grant each Member registration rights in connection with sales of equity
securities of the Company by the Company or any other Member to the public
pursuant to an effective registration statement (other than a registration
statement on Form S-4 or S-8 or any similar or successor form) filed under the
Securities Act of 1933 (a "Public Offering") after the Company has previously
sold shares of its equity securities to the public in an underwritten Public
Offering and (ii) be subject to customary terms, conditions, and exceptions,
including a so-called "underwriters' cut-backs" and general priority in
registration for securities to be sold by the Company. The form of such
registration rights agreement will be prepared by legal counsel to Starwood,
subject to the reasonable comments and approval of legal counsel to BH/RE.
9. Rapid Resolution Process. Starwood and BH/RE agree that new Section
13.21 is hereby added to the EquityCo Agreement as follows:
13.21. RAPID RESOLUTION PROCESS REQUIRED.
The Members shall resolve any dispute that may arise in connection with
this Agreement (including disputes referenced in Section 7.02(g) but excluding
disputes covered by Section 12.03 of this Agreement (for which the dispute
resolution process is described therein)) through a process of final and binding
arbitration (without appeal or review) in the State of New York, administered by
an independent arbitration tribunal pursuant to the commercial arbitration rules
of the American Arbitration Association. Notwithstanding the foregoing, the
arbitrator's decision on any matter submitted for arbitration shall be based
upon what is commonly referred to as the "baseball arbitration" approach,
whereby the arbitrator must select the position
6
presented to the arbitration tribunal by either Starwood or BH/RE, and may not
make a ruling/determination other than in favor of one of the two positions
presented. If more than one issue shall be submitted to the same arbitrators for
resolution, each such issue shall be deemed a separate arbitration for all
purposes hereof, such issues to be identified separately by the parties in their
submission to arbitration, and each such issue shall be subject to a separate
decision by the arbitrators. All arbitrators appointed hereunder shall be
persons having not less than ten (10) years' experience in the area of expertise
on which the dispute is based.
Any arbitration of a dispute shall be initiated by a delivery of a demand
for arbitration with the American Arbitration Association and shall be completed
by the parties and arbitration tribunal, and a written decision shall have been
rendered, within forty-five (45) days of the delivery of such demand.
THE ARBITRATORS SHALL HAVE NO AUTHORITY TO AWARD ANY PUNITIVE OR EXEMPLARY
DAMAGES OR TO VARY OR IGNORE THE TERMS OF THIS AGREEMENT, AND SHALL BE BOUND BY
CONTROLLING LAW.
10. Hotel Management Contract Changes.
(a) Sheraton and OpBiz agree that, if the Westgate/CFI time share facility
(or another timeshare facility built within a similar timeframe that provides
for vacant timeshare units to be used as hotel rooms) is built on the vacant
property, being purchased by OpBiz under the Purchase Agreement, adjacent to the
Property, then, to the extent (1) rooms are available therein for rental as
hotel rooms or hotel suites ("Time Share Rooms"), (2) meeting, convention,
catering or similar space is located therein (collectively, "Convention
Facilities"), or (3) other food and beverage facilities ("F&B Facilities") are
located therein, Sheraton shall have the right (which right shall be exercised
by Sheraton by written notice to OpBiz within fifteen (15) business days of
OpBiz's request for a decision thereon) to provide the hotel management services
for the Time Share Rooms and/or the Convention Facilities (and, if requested by
OpBiz, manage some or all of the F&B Facilities) under the Hotel Management
Agreement, as applicable and practicable and subject to certain mutually agreed
modifications to take into account the non-branded nature of the Time Share
Rooms, in exchange for the same fees provided thereunder for providing similar
services, based on the revenues generated in connection with the rental of the
Time Share Rooms and/or revenues from the Convention Facilities (and, if
applicable, revenues from such F&B Facilities) (such fees, however, to be
subject to the caps thereon provided in the Hotel Management Contract).
(b) Sheraton and OpBiz agree that the following language of Section 2.4 of
the Hotel Management Contract is hereby deleted:
(which shall be the rates payable by Manager with respect to rooms
utilized under the Frequency Program with respect to standard rooms, and $250.00
per day for suites (which amount shall be increased annually by the same
percentage increase in estimated average daily occupancy rate included in the
Operating Plan for the year in question), unless Manager shall otherwise agree)
7
(c) Sheraton and OpBiz agree that the next to last sentence of Section
2.8.2(a) of the Hotel Management Agreement is hereby deleted and that the
following language is put in its place:
In connection with the operation of the Owner Website, which shall be
operated at Owner's expense, Owner shall work with Manager on the design,
development and operational standards for such Owner Website to ensure that such
Owner Website complies with applicable Legal Requirements. The Owner Website
shall be run by Owner and the inter-activity of the Owner Website with the
Manager's website(s) related to the Hotel shall be determined by the CEO. If
Manager possesses skills or can reasonably provide services to Owner in
connection with Owner's running of the Owner Website, Manager shall, if and as
requested by Owner, provide such services to Owner provided Owner reimburses
Manager for the actual cost to Manager of providing such services.
(d) Sheraton and OpBiz agree that the following language shall be added
after the words "...Owner shall have the right to use Guest Data..." in Section
2.9 of the Hotel Management Agreement:
(subject to Manager's policies and procedures with respect to the use thereof
that are necessary for compliance with (A) applicable Legal Requirements and (B)
privacy obligations made by Manager in connection with the gathering, retention
and use of the Guest Data; provided, however, that with respect to clause (B)
such policies and procedures shall be applied to Owner consistent with how they
are applied to each other hotel owned or managed by Manager)
(e) Sheraton and OpBiz agree that the first sentence of Section 3.1.2 of
the Hotel Management Contract is hereby deleted in its entirety and replaced
with the following:
The Management Fee shall be paid monthly in arrears based on the actual
monthly Gross Operating Revenue and Casino Comp Revenue of the Hotel.
(f) Sheraton and OpBiz agree that the following language is hereby deleted
from Section 12.19 of the Hotel Management Contract:
or the agency hereby created,
(g) Sheraton and OpBiz agree that the paragraph in Section 1.2 of the
Hotel Management Contract titled "Management Fee" is hereby deleted and replaced
with the following:
Management Fee: Four percent (4%) of the Gross Operating Revenue and
Casino Comp Revenue for each Operating Year during the Operating Term, and two
percent (2%) of the Rental Income for each Operating Year during the Operating
Term.
(h) Sheraton and OpBiz agree that a new definition to Exhibit C of the
Hotel Management Contract is hereby added as follows:
Casino Comp Revenue -- the deemed revenue associated with Rentable Guest
Rooms (including suites) which Owner provides to guests either free of charge or
at rates less than the
8
then current reimbursement rate under the Frequency Program. Through December
31, 2005, the deemed revenue for each such room shall be $50 per night
(currently equal to the category 3D reimbursement rate of the Frequency Program)
multiplied by the number of room nights for such room. After December 31, 2005,
the deemed revenue for each such room shall be equal to the reimbursement rate
of the Frequency Program corresponding to the category for the budgeted ADR
determined no less frequently than annually in connection with the Operating
Plan multiplied by the number of room nights for such room. For example,
category 3D is budgeted ADR of $111 to $149, which corresponds to a $50
reimbursement rate. (Note that, unlike the SPG reimbursement to Owner, the
Casino Comp Revenue shall not be affected by the occupancy level of the Hotel.)
(i) Sheraton and OpBiz agree that the middle column of the row of Exhibit
D to the Hotel Management Contract entitled "SPG-Standard Award Reimbursements"
is hereby deleted in its entirety and replaced with the following:
The Hotel shall be classified initially as an SPG 4I category hotel (or
comparable designation as may be changed from time to time) for purposes
of determining the SPG reward level. Owner's CEO shall have the right to
raise (but not higher than SPG 4I (or comparable designation as may be
changed from time to time)) or lower the SPG category level for the Hotel
once per year. When occupancy is at or above 95% (determined excluding any
rooms made available from the timeshare facility) on the day(s) of the
stay, the reimbursement is equal to the hotel's ADR for the day(s) of the
stay. In determining such ADR for full ADR reimbursement, the CEO has the
right to remove SPG award stays and/or casino comps in making the nightly
ADR calculation. (The ADR calculation for that night therefore likely will
be different than reported under GAAP or any other reporting methodology
and is a specific "SPG redemption ADR.") When occupancy is below 95% on
any given night, the reimbursement is calculated on a sliding scale based
on the SPG award compensation schedule in effect at the time of the award
redemption. The initial period will be no less than $100 per night. The
award category can also be changed downwards through a promotion
("Promotional Changes") at any time in the future by the CEO and the CEO
must notify Manager in writing of such Promotional Changes and when
Promotional Changes should apply. If the SPG systems are capable of
handling Promotional Changes on shorter notice, then the CEO shall have
the right to do such. Owner shall pay to Manager the hotel bonus point
cost of not more than $.0125 for each bonus point awarded to an SPG member
in connection with the Promotional Changes. The Manager may not charge any
other hotel less for the purchase of bonus points than Manager is charging
Owner.
11. Further Assurances. Each of the Parties agrees to execute,
acknowledge, deliver, file, record and publish such further instruments and
documents, and do all such other acts and things as may be required by law, or
as may be required to carry out the intent and purposes of this Agreement.
12. Notices. All notices, demands, consents, approvals, requests or other
communications which any of the Parties may desire or be required to give
hereunder (collectively, "Notices") shall be in writing and shall be given by
personal delivery, facsimile
9
transmission or a national recognized overnight courier service, fees prepaid,
addressed as follows:
If to BH/RE, EquityCo or OpBiz c/o Xx. Xxxxxx Xxxx
c/o Planet Hollywood International, Inc.
0000 Xxxxxxxxx Xxxxxx
Xxxxxxx, XX 00000
Fax: (000) 000-0000
and
c/o Bay Harbour Management LC
000 Xxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Fax: (000) 000-0000
With a copy to: Xxxxx Day
0000 Xxxxx Xxxxxxx Xxxxxx
Xxxxxx, XX 00000
Attention: Xxxxxxx Xxxxxxxx, Esq.
Fax: (000) 000-0000
If to Starwood or Sheraton: Starwood Hotels and Resorts Worldwide,Inc.
0000 Xxxxxxxxxxx Xxxxxx
Xxxxx Xxxxxx, XX 00000
Attention: General Counsel
Fax: (000) 000-0000
With a copy to: Xxxxxxxx & Xxxxx LLP
000 Xxxx Xxxxxxxx Xxxxx
Xxxxxxx, XX 00000
Attention: Xxxxxxx X. Xxxxxxxxx, P.C.
Fax: (000) 000-0000
Any Party may designate another addressee (and/or change its address) for Notice
hereunder by a Notice given pursuant to this Section 12. A Notice sent in
compliance with the provisions of this Section 12 shall be deemed given on the
date delivered, if delivered by personal delivery, on the date sent, if sent by
facsimile transmission, and on the Business Day after it is sent by overnight
courier service.
13. Attorney's Fees. If any of the Parties obtains a judgment against any
of the other Parties by reason of the breach of this Agreement or the failure to
comply with the terms hereof, reasonable attorney's fees and costs incurred to
prosecute claims for such breach shall be awarded by the court.
10
14. Captions. All titles or captions contained in this Agreement are
inserted only as a matter of convenience and for reference and in no way define,
limit, extend, or describe the scope of this Agreement or the intent of any
provision in this Agreement.
15. Extension Not a Waiver. No delay or omission in the exercise of any
power, remedy or right herein provided or otherwise available to a Party shall
impair or affect the right of such Party thereafter to exercise the same.
16. Counterparts. This Agreement may be executed in multiple counterparts,
each of which shall be an original but all of which together shall constitute
but one and the same agreement.
17. Venue. Each of the Parties consents to the jurisdiction of any state
or federal court sitting in the State of New York for any action arising out of
matters related to this Agreement. Each of the Parties agrees that service of
process on it in the manner set forth in Section 12 hereof shall be deemed
effective service of process on such Party.
18. Waiver of Jury Trial. EACH OF THE PARTIES HEREBY WAIVES TRIAL BY JURY
IN ANY ACTION ARISING OUT OF MATTERS RELATED TO THIS AGREEMENT, WHICH WAIVER IS
INFORMED AND VOLUNTARY.
19. Effect of This Agreement. Except as modified by this Agreement, the
EquityCo Agreement, the Hotel Management Contract and each other agreement
modified or amended by this Agreement are hereby ratified and confirmed and
shall remain in full force and effect in accordance with their respective terms.
11
IN WITNESS WHEREOF, the Parties agree to the terms of this Agreement.
Starwood Nevada Holding, LLC
By: Starwood Hotels and Resorts Worldwide,
Inc.
By: /s/ Xxxxxxxx Xxxxxxx
-----------------------------------------
Its: President - Real Estate
Sheraton Operating Corporation
By: /s/ Xxxxxxxx Xxxxxxx
-----------------------------------------
Its: President
BH/RE, L.L.C.
By: /s/ Xxxxxxx Xxxxxxxxxx
-----------------------------------------
Xxxxxxx Xxxxxxxxxx, Manager
And by: /s/ Xxxxxx Xxxx
---------------------------------------
Xxxxxx Xxxx, Manager
EquityCo, L.L.C.
By: /s/ Xxxxxxx Xxxxxxxxxx
-----------------------------------------
Xxxxxxx Xxxxxxxxxx, Manager
And by: /s/ Xxxxxx Xxxx
-------------------------------------
Xxxxxx Xxxx, Manager
12
OpBiz L.L.C.
By: MezzCo L.L.C.
By: Equity Co L.L.C.
By: /s/ Xxxxxxx Xxxxxxxxxx
----------------------------------------
Xxxxxxx Xxxxxxxxxx, Manager
And by: /s/ Xxxxxx Xxxx
-------------------------------------
Xxxxxx Xxxx, Manager
The undersigned hereby executes this Agreement to confirm (i) its approval
of the terms of this Agreement and (ii) the Guaranty of the undersigned to BH/RE
dated as of April 23, 2003 (the "Guaranty") shall remain in effect with respect
to all obligations of Starwood under Section 4.01 of the EquityCo Agreement as
modified hereby; provided however, that everything in Section 2 of the Guaranty
after "its obligations under Section 4.01 of the Agreement" is hereby deleted
from such Section 2.
Starwood Hotels & Resorts Worldwide, Inc.
By: /s/ Xxxxxxxx Xxxxxxx
----------------------------------------
Its: President - Real Estate
13
